Marygold S. Melli, JD
Voss-Bascom Professor of Law Emerita
University of Wisconsin-Madison
All states have statutory provisions outlining programs of protective services for children who are abused and neglected. These laws have been shaped in very important ways by two federal initiatives: The Child Abuse Prevention and Treatment Act of 1974 and The Adoption Assistance and Child Welfare Act of 1980. Now, The Personal Responsibility and Work Opportunity Act of 1995 has changed the nature of the federal commitment in child abuse and neglect and may affect future state legislation.
The focus of the state abuse and neglect laws is on three discrete, but related situations in which protection of the child in danger of abuse or neglect arises. These are: (1) the decision to remove the child from its home; (2) the efforts to return the child to its home, once it has been removed; and (3) the decision to terminate parental rights and place for adoption.
Underlying these laws is the assumption that living in a permanent family relationship is in the best interest of children. Therefore, the law seeks to promote and protect that kind of a living situation for children.
This presentation looks briefly at each of the three areas, listed above, and describes the objectives of the law, how those objectives were to be attained and some of the problems that have arisen.
Mandatory Reporting Laws
Child abuse and neglect laws are products of the 20th century. In the beginning they were directed at removing children from unsafe situations. Beginning in the 1960s child abuse legislation focused on identifying abused children and protecting them from abusive treatment. By the 1970s most states had mandatory child abuse reporting laws. These laws aimed at identifying abused children and setting in motion legal procedures to investigate the child's situation and either to provide services for them in their own home or to remove them from their home and place them in a safer environment.
High caseloads have been a significant issue in the functioning of the abuse reporting and investigating system.
Child abuse reporting resulting in unfounded cases has raised issues of the tension between parent's rights and children's rights.
Maintaining Children in Their Own Home
Early efforts at removal of children from unsafe conditions placed children in orphanages. As knowledge of child development grew and the value of a family setting was recognized, the solution of choice for neglected and abused children became foster homes instead of orphanages. In the latter part of this century, we began to recognize that the child's interest was best served by a permanent home -- either with its own family or an adoptive family. As a result, efforts for children now begin with concern about their own family and focus on helping families at risk.
The Child Abuse Prevention and Treatment Act of 1974 established the national Center on Child Abuse and Neglect to make grants to states to implement child abuse and neglect prevention programs. In response, states established Child Abuse and Prevention Boards to make grants with an emphasis on early intervention.
There is increasing recognition that one of the most productive approaches to helping children at risk is early intervention. Proposed legislation in Wisconsin that allocates 2% of the corrections budget for prevention is an example of an initiative that recognizes the importance of early intervention.
The Adoption Assistance and Child Welfare Act of 1980 required states as a condition for receiving federal reimbursement for foster care to create social programs to help the family before a child is at risk and to prevent the need for removal. These services include, for example, temporary child care and counseling services.
Currently there is considerable policy concern about the failure to remove children who are subsequently severely injured (Joshua DeShaney) or killed (Eliza Izquierdo). These cases have brought criticism of efforts to have children remain at home in the face of concern about abuse.
Guardians ad litem
Another program for providing children in neglect and abuse proceedings with additional protection has been the guardian ad litem. The Child Abuse Prevention and Treatment Act of 1974 required that "in every case involving an abused or neglected child which results in a judicial proceeding a guardian ad litem shall be appointed to represent the child in such proceedings. . ." The law specified neither what the duties of the guardian ad litem are or what qualifications that person should have. Almost all states now have a statutory provision for guardians ad litem; some require the guardian ad litem to be a lawyer; others do not.
Foster Care Drift
Once a child is removed from its own home, the focus of the law is on returning the child to its family as soon as it is feasible. However, rehabilitating dysfunctional families is time consuming and expensive and children often stay in foster care for long periods of time.
The Adoption Assistance and Child Welfare Act of 1980 required states to make increased efforts to reunite families. When a child is removed from its home, "reasonable efforts" must be made to bring about quick and eventual reunification of the family. Drug and alcohol abuse counseling, parenting classes and family counseling programs are examples of "reasonable efforts." To monitor these reasonable efforts the federal law required states to keep records of children in foster care and to develop individualized permanency plans for each child. Every six months a judicial or administrative review of a child's plan was required with eighteen months set as a goal for reuniting the family or terminating parental rights to free the child for adoption.
The requirement of reasonable efforts raises questions of whether provision of available services qualifies and whether agencies with unreasonably high caseloads make reasonable efforts.
The Tension Between Parent's Rights and Child Protection
The review process for reasonable efforts has created a body of law dealing with notification of parents, the extent of agency efforts and related issues.
The objective of a termination of parental rights proceeding.
If a child cannot be returned to its own family, the law provides for termination of parental rights so the child can be placed for adoption and thus provided with a permanent home.
Continued tension between parents' rights and children's needs.
The tensions between the right of parents to get more help and the need to expedite the process to accommodate the different time scale of children have been the topic of much public policy debate. The requirement that reasonable efforts be made to rehabilitate families has resulted in some lengthy delays in the process of moving children to permanent homes.
For some time, the trend has been toward reducing requirements for reasonable efforts to rehabilitate and expediting procedures to place the child in a permanent home. The federal Adoption and Safe Families Act of 1997 changes the law so that reasonable efforts to reunify families are not required in certain situations where the health and safety of the child may be at risk. These include cases where the parent's rights to a sibling have been involuntarily terminated, where a court has found the parent has subjected the child to aggravated circumstances, such as abandonment, torture, chronic abuse and sexual abuse, or where the parent has been involved in a homicide of another child or has assaulted the child or a sibling resulting in serious bodily injury.
The Adoption and Safe Families Act also provides that, if a child has been in foster care for 15 of the most recent months, the state must file a petition to terminate parental rights.
Today, a new issue is gaining public notice. Concern is being expressed about parentless children. Studies show that the numbers of children whose parental rights have been terminated but who are not -- and may not be able to be -- placed for adoption have increased significantly. In a Michigan study, the number of these children in that state has increased from 1752 in 1986 to 2020 in 1992; in a New York study, the number in that state has increased from 732 to 2495 between 1987 and 1991.
States are now searching for ways to respond to this problem. An example of one approach is the court rule adopted by the West Virginia Supreme Court that prevents the termination of parental rights without an accompanying permanent placement. This rule is an attempt to deal through court procedure with the problem of inadequate resources to help children find safe families. Hopefully, it will prod policy makers into providing more resources.
The federal Adoption and Safe Families Act of 1997 requires that, when a termination of parental rights proceeding is brought, the state must concurrently recruit, process and approve a qualified adoptive family. The Act also establishes a mechanism for incentive payments to states that successfully increase foster child adoptions.
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